The right to offend: Differentiating free speech from hate speech

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The right to offend: Differentiating free speech from hate speech
Ibrahim Musana was arrested on Saturday.

It is crucial to clarify the distinction between exercising the right to offend within the bounds of free speech and engaging in hate speech, which is illegal and subject to legal consequences.

BY ISMAIL OBADIA

In recent times, discussions surrounding freedom of speech and expression have become increasingly complex, particularly in light of the rise of social media platforms and the proliferation of online communication.

One of the fundamental principles underlying freedom of speech is the right to offend, which is often misunderstood and misconstrued.

It is crucial to clarify the distinction between exercising the right to offend within the bounds of free speech and engaging in hate speech, which is illegal and subject to legal consequences.

The right to offend falls squarely within the ambit of freedom of speech and expression, as enshrined in Article 29(1)(a) of the Constitution of Uganda.

This provision guarantees every person the right to freely express their opinions, thoughts, and ideas, including those that may be offensive or controversial. The freedom of speech encompasses the right to criticize, ridicule, and even insult public figures or individuals in positions of authority without fear of censorship or reprisal from the government.

However, it is essential to recognize that the right to offend is not absolute and is subject to limitations as provided for in the Constitution. While individuals have the right to express themselves freely, this freedom is not unlimited, and there are circumstances where restrictions may be justified.

The Constitution allows for reasonable limitations on the exercise of all freedoms, including freedom of speech, to safeguard public order, morality, national security, and the rights and freedoms of others.

One critical distinction to be made is between speech that is offensive or insulting and speech that constitutes hate speech. Insulting a public figure by calling them derogatory names or questioning their intelligence, while offensive, is protected speech under the freedom of expression.

No leader or government authority can lawfully suppress such speech or take punitive action against individuals for engaging in it.

On the other hand, hate speech crosses the line into illegality when it involves threats of violence, incitement to harm, or discrimination against individuals or groups based on their race, ethnicity, religion, gender, or other protected characteristics. Hate speech undermines social cohesion, promotes intolerance, and poses a direct threat to the rights and dignity of individuals and communities.

In the landmark case of Gwogyolonga and three others v Attorney General (Constitutional Petition No 15 of 2017) decided on 17th March 2023, the Constitutional Court reaffirmed inter alia the importance of upholding freedom of speech while also recognizing the need to strike a balance between protecting this fundamental right and preventing harm to individuals and society.

The court's decision to scrap section 25 of the Computer Misuse Act underscored the principle that laws restricting speech must be clear, precise, and narrowly tailored to achieve a legitimate aim.

International best practices also emphasise the importance of distinguishing between free speech and hate speech. While democratic societies uphold freedom of expression as a cornerstone of democracy, they also recognise the need to combat hate speech through legal and regulatory measures.

These measures aim to promote tolerance, diversity, and respect for human rights while preventing the spread of harmful speech that incites violence or discrimination.

In conclusion, the right to offend is an integral aspect of freedom of speech and expression, but it is not without its limitations.

While individuals have the right to express controversial or offensive opinions, they must do so within the bounds of the law and respect the rights and dignity of others.

Differentiating between free speech and hate speech is essential for maintaining a healthy and inclusive public discourse while safeguarding the rights and freedoms of all individuals.

 

The Author is a Practicing Lawyer (Advocate)

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